Written by My Collaborative Team President Edward S. Sachs
Read it on Wednesday, discuss it on Friday at 1 p.m. on The Think Tank
The Collaborative Process is designed to help parties resolve disputes respectfully, privately, and without resorting to traditional litigation. It emphasizes communication, transparency, problem-solving, and negotiated outcomes. Yet even in a collaborative matter, disagreements can arise that seem difficult to resolve through negotiation alone. When that happens, parties may consider using a private judge as an additional resource.
A private judge can provide a structured way to address specific legal or factual questions while allowing the parties to remain outside the public court system. When thoughtfully integrated into the Collaborative Process, this option can help parties overcome impasses without abandoning the principles of collaboration.
A private judge is generally a qualified attorney, retired judge, or other experienced legal professional who is privately engaged by the parties to assist with a dispute. Depending on the agreement between the parties, the private judge may act as a neutral evaluator, decisionmaker, arbitrator, or settlement facilitator.
The precise role of the private judge is established by agreement. For example, the parties may ask the private judge to provide an assessment of the legal strengths and weaknesses of each position, decide a narrowly defined disputed issue, conduct a private hearing concerning a particular question, or offer guidance when negotiations have reached an impasse. This flexibility makes private judging particularly useful in Collaborative matters, where parties may want assistance with a specific problem rather than a wholesale transition to litigation.
One of the principal advantages of the Collaborative Process is that it gives parties greater control over how their dispute is resolved. A private judge can preserve much of that control while providing an additional layer of expertise when needed.
Collaborative negotiations do not always produce immediate agreement. Parties may reach consensus on most issues but remain divided over one particularly difficult question. Rather than abandoning the Collaborative Process and turning to litigation, the parties can agree to submit that discrete issue to a private judge.
The introduction of a private judge should not transform a Collaborative matter into traditional litigation by another name. The fundamental objective remains problem-solving. The parties should continue to communicate openly, exchange relevant information, and search for solutions that address their respective interests.
Perhaps the greatest benefit of private judging in the Collaborative Process is that it creates another option between negotiating indefinitely and going to court.
The key is to use private judging selectively. It should be viewed as a tool within the larger Collaborative toolbox, not as a replacement for collaboration.
Join us on Friday to discuss what limitations there may be in using a private judge in the Collaborative Process and what the roles of the professionals are when utilizing a private judge.
Ed,
I feel like a shill, having mentioned this in our last meeting.
Anyway, I do not believe a Private Judge should be used for a binding resolution, such as an arbitrator. Helping guide the parties with opinions would be where the private judging would be able to do more than a mediator.
Also, this is a great time to remind people of the Kevin Scudder (OBM) recommendation of having a termination meeting so as to preserve what we can from the Process and look into bringing in a mediator or private judge before the Process is terminated.
Jeff
Great concept great article as always. Thank you
We frequently retain a private judge (often a collaborative legal colleague) for ministerial tasks, particularly blessing the settlement and approving and signing the Judgment and related pleadings. I believe that it is antithetical to the collaborative process, however, for the private judge to have any substantive decision-making authority. Once the parties have ceded their decision-making to a third person, they are no longer in a collaborative process. This doesn’t mean that they can’t resolve nearly all of their questions and then turn the remaining question or two over to a third party decision-maker, but they have left the collaborative process at that point. In my experience, spousal support / alimony is the nut that they can’t crack. If it looks like a duck …